[2010] KEHC 1229 (KLR)
The court held that the application for leave to apply for judgment was incompetent because the applicable rules governing constitutional and fundamental rights claims do not provide for interlocutory judgment. Instead, the rules require that where a defendant has not responded, the plaintiff must set the matter...
Source-derived case information.
- Citation
- [2010] KEHC 1229 (KLR)
- Parties
- Plaintiff: Afrison Export Import Limited; Plaintiff: Huelands Limited; Plaintiff: Drive-In Estate Developers Limited; Defendant: Attorney General; Defendant: Commissioner of Lands
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 977 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Apply for Judgment
- Outcome
- application struck out with costs
- Legal Topics
- Interlocutory Judgment, Compulsory Acquisition, Failure to Compensate, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Afrison Export Import Limited
Plaintiff
Huelands Limited
Plaintiff
Drive-In Estate Developers Limited
Plaintiff
Attorney General
Defendant
Commissioner of Lands
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Apply for Judgment
Legal Issues
- 1 Whether the plaintiffs are entitled to interlocutory judgment against the defendants for failure to respond within the prescribed time.
- 2 Whether the application for leave to apply for judgment is competent under the applicable rules.
Ratio Decidendi
The court held that the application for leave to apply for judgment was incompetent because the applicable rules governing constitutional and fundamental rights claims do not provide for interlocutory judgment. Instead, the rules require that where a defendant has not responded, the plaintiff must set the matter down for hearing and determination. The provisions of the Civil Procedure Rules relating to interlocutory judgment do not apply in this context. Consequently, the plaintiffs' application was struck out with costs.
Court Disposition
application struck out with costs
Orders
- The plaintiffs' application for leave to apply for judgment is struck out with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 977 OF 2005 (O.S)
AND
IN THE MATTER OF DEPRIVATION OF AFRISON EXPORT IMPORT LIMITED, HUELANDS LIMITED AND DRIVE-IN ESTATE
DEVELOPERS LIMITED OF THEIR INTEREST IN AND RIGHTS OVER L.R. NO. 7879/4 BY THE GOVERNMENT OF KENYA
BETWEEN
AFRISON EXPORT IMPORT LIMITED ………………..1ST PLAINTIFF
HUELANDS LIMITED ……………………………………..2ND PLAINTIFF
DRIVE-IN ESTATE DEVELOPERS LIMITED ….……..3RD PLAINTIFF
AND
ATTORNEY GENERAL …………………………………..1ST DEFENDANT
COMMISSIONER OF LANDS …………………….……2ND DEFENDANT
R U L I N G
The Plaintiffs brought this summons on 3rd August, 2005 seeking declaratory orders against the Defendants. Their complaint was that the Defendants were served on the same day but have not responded to it. In the present application they seek leave to apply for judgment against the Defendants. In the supporting affidavit they indicate they will be seeking KShs. 11,442, 800,000/= from the Defendants. Their case is that that is the value of the land L.R. No. 7874/4 which the Government took from them by force in 1988 but did not compensate them for it.
The Defendants filed grounds of opposition to the application. There has been no explanation why the Defendants do not want to defend this claim in which such substantial public money is sought.
Under rule 19 ofthe Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedomsof the Individual) High Court Practice and Procedure Rules, 2006 where the Defendant has not responded within the time provided by the law, the Plaintiffs are required to set down the matter for hearing and determination. The Rules do not provide for an interlocutory judgment, or the application of Order 9A rules 7 and 11 of the Civil Procedure Rules.
In short, the application is incompetent and is struck out with costs.
DATED AND DELIVERED AT NAIROBI
THIS 21ST DAY OF OCTOBER 2010
A. O. MUCHELULE
J U D G E